Unions provide attorneys and legal coverage for their members. Sometimes employers provide attorneys for their employees. Do they have legal malpractice responsibility to the member-employee ? Does the attorney have a legal malpractice responsibility to the client, in the absence of privity? Some answers are set forth in NADA, -against- 1199 SEIU HEALTH CARE EMPLOYEES UNION, 09 Civ. 5796 (SAS);UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK;2010 U.S. Dist. LEXIS 12061;February 11, 2010,
Take this situation. Client is a member of a union that provides legal free attorneys to its members. Perhaps the client needs an attorney for a closing, or to handle a simple contract. In most cases, the attorney and the client do not sign a retainer agreement. The attorney is paid, in some fashion, by the union, or in some cases, by the employer. Then something goes wrong. The main doctrinal problem in a legal malpractice analysis is that there is no professional relationship between the attorney and the client. Resort to an argument that the relationship is "so close" as to resemble privity often fails. What then?
A suit against the union for lack of fair representation, or against the employer for breach of a collective bargaining agreement is one resort. If that is the action, what is the statute of limitations?
Judge Scheindlin in Nada tells us: ‘Liberally construed, Nada alleges that 1199 has breached its duty of fair representation. 12 In DelCostelio v. Teamsters, the Supreme Court held that the six-month statute of limitations of section 10(b) of the National Labor Relations Act applies to cases in which employees sue both their employer for breach of the collective [*5] bargaining agreement pursuant to section 301(a) of the Labor Management Relations Act, and their union for breach of its duty of fair representation. 13 In reaching this conclusion, the Court rejected the notion that state statute of limitation periods for vacating an arbitration award and for legal malpractice were applicable to such claims. 14 The Second Circuit has held "DelCostello to require that the § 10(b) six-month limitations period also be applied to unfair representation claims standing alone…."
"Here, Nada asserts that 1199 breached the duty of fair representation by failing to remedy the pay differential for certain of the former-144 members through the committee created by the May 2004 side letter agreement. Nada was aware of this claim on October 30, 2007, when he signed a grievance form complaining about 1199’s failure to secure the raises and benefits mentioned in that agreement. Therefore, the six-month limitation period in which to bring this cause of action expired, at the latest, on April 30, 2007. Because Nada did not commence this action until June 5, 2009, it is untimely."